Use of restraint in schools: It's time for change to address shortcomings in safeguarding and accountability
The use of restraint against children in schools is understandably highly emotive and raises crucial issues regarding protection of their fundamental civil liberties.
The right not to be subjected to inhuman and degrading treatment under Article 3 European Convention on Human Rights (ECHR); not to be unlawfully deprived of one’s liberty under Article 5 ECHR and respect for private life under Article 8 ECHR are paramount. If circumstances arise which may result in infringement of these rights by a public body, it's vital that safeguards are in place, in addition to accountability and legal redress.
The legal position
Currently, the legal framework in England contains no mandatory requirement on schools, local authorities or the Government to keep monitor and analyse records to understand the reasons and circumstances which lead to staff considering restraints necessary.
Local authorities, Osted and the Government have therefore lacked the data and tools to develop an informed strategy to reduce/eliminate restraints in respect of children. There's no legal requirement on those bodies to obtain the insights of families when their child is restrained or secluded. There's also no meaningful or mandated external scrutiny by Ofsted of schools' use of restraint and seclusion.
It's therefore highly welcome, albeit overdue, that the Government launched a call for evidence on 16 February, 2023, whose purpose includes:
- Understanding how school leaders and staff minimise the use of reasonable force, restraint, and restrictive practices.
- The circumstances in which the practices are used, including appropriateness and safety
- Consider introducing recording and data reporting duties; training; early intervention; de-escalation strategies and support following an incident.
Helping families whose children have been subjected to restrictive practices
Me and my colleagues at Irwin Mitchell have represented children who've been subjected to restrictive practices in school, often in circumstances where parents only found out about the practices much later after they occurred and because of their children showing serious signs of trauma.
We've secured compensation for some children after pursing civil claims. We've also advised campaigning organisations that seek to change the law to ban restraints and restrictive practices in schools, which disproportionately affect autistic children and young people. In doing so, we've successfully raised issues of wider public interest in pre-action judicial review correspondence with the Government.
Consultation important in addressing safeguarding shortcomings
Based on our experience in acting for children who've been subjected to restrictive practices and campaigning organisation, there's every reason to suspect there's widespread and systematic violations of vulnerable children’s civil liberties in schools in England.
The consultation is an important first step in addressing the many current safeguarding and accountability shortcomings which can have life-long consequences for children.
It should be recognised that use of restraint is also an issue for some vulnerable adults in care settings, some of whom have experienced restraint since childhood. Introducing compulsory and fit for purpose safeguards in schools after publicly consulting parents and relevant stakeholders is vital.
Irwin Mitchell and Doughty Street Chambers are hosting a seminar on Monday, 13 March, entitled Restrictive Practices in Schools which will provide an opportunity to hear from professionals in the field.
It will also enable attendees to consider coalition-building in response to the Government’s consultation and any potential planned programme of works to amend current guidance and legislation in this area. Invitation requests are available on the Doughty Street Chambers website.
Find out more about Irwin Mitchell's expertise in supporting families affected by restraint in schools and other education issues at our dedicated protecting your rights section.